U.S. Appeals Court reverses dismissal of mounted unit suit

Oxford Village was dealt a legal blow last week by the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio.

A three-judge panel reversed a federal district court’s August 2017 decision to dismiss a lawsuit against the village filed by three individuals who claim they were denied their Fourteenth Amendment right to due process – specifically the right to a hearing to clear their names – after their reputations were allegedly harmed by officials’ comments during a public meeting.

During this same meeting, they also claim they were improperly removed from their unpaid positions as reserve officers in a village police mounted unit.

“The district court found that because they were not paid employees whose employment was terminated, they were not entitled to a name-clearing hearing. That conclusion was inconsistent with Supreme Court and Sixth Circuit precedent,” wrote U.S. District Judge David J. Hale in the opinion filed June 27.

Hale authored the 10-page opinion and was part of the three-judge panel that included U.S. Circuit Judges Deborah L. Cook and Bernice B. Donald.

Not only did the appeals court reverse the dismissal, it remanded the case back to federal district court “for proceedings consistent with this opinion.”

Reaction from both sides
“I’m very pleased with the result,” said Philip L. Ellison, the Hemlock-based attorney representing the trio of plaintiffs, which includes Oxford Twp. residents Dr. Bruce Meyers and his wife Kallie Roesner-Meyers along with Eugenia Calocassides, of Metamora.

“I think it accurately reflects what the law is. . . .I think what it does is (it) establishes that governments have a responsibility to everybody, not just the ones they pay money to.”

“This case clearly (and) definitively establishes that if you work for the government, you have constitutional rights that have to be protected by the government,” Ellison noted. “They can’t just defame you and kick you out the door. They’ve got to give you a name-clearing hearing, which is the right of anybody who works for the government.”

Village attorney Bob Davis didn’t mince words when it came to expressing his thoughts.

“I think the opinion that we’ve received is wrong,” he said. “It’s a bad opinion.”

Davis pointed out the Sixth Circuit’s decision goes against a ruling it made in 2002 (Quinn v. Shirey), in which one of the five elements that made someone eligible for a name-clearing hearing was an employment relationship.

“It’s the same court – that’s why I’m telling you it’s a very odd decision,” he said.

Davis doesn’t see how the appeals court can “now say, ‘well, that’s not what we meant’ without saying ‘we’re overruling Quinn.’”

“They go out of their way to say, ‘we’re not overruling Quinn, we’re clarifying Quinn.’”

“A subsequent Sixth Circuit panel is bound by (the decisions of) a prior Sixth Circuit panel, unless you’re going to declare we are hereby overruling that opinion,” Davis explained. “And it didn’t seem to me like they were willing to admit they were overruling Quinn, so it’s a bizarre opinion.”

“The court is struggling, in my opinion, to find some right that we took away from these people and quite frankly, I’m not seeing it,” he said.

What’s next?

Moving forward, Davis indicated he must now discuss how to proceed with the village’s insurance carrier.

Davis said the village could “do nothing,” let the case go back to district court and “see what the judge wants to do with it.”

Or the village could file a motion for reconsideration with the appeals court and “point out (the) deficiencies” in its ruling.

Or the village could “take it up to the U.S. Supreme Court.”

“Those are the three options,” Davis said.

But Ellison provided a fourth option – the village could give his clients the name-clearing hearing they requested.

“That way we could end the federal lawsuit,” he said.

To Ellison, this case boils down to that one thing. “We weren’t asking for huge amounts of money. We weren’t asking for the moon and the stars,” he explained. “We were asking for the opportunity to have a hearing – a name-clearing hearing – and the village just refused to provide it. That’s what this whole lawsuit is about – that (the village) just won’t allow the facts to come to light. And that’s what due process requires.”

If a name-clearing hearing were held, Ellison explained it would have to be conducted in a “public forum,” but “it can’t be at a village council meeting.” He said it would have to be something separate with a “hearing officer” and the opportunity to present witnesses.

“We get to challenge (the accusations made against the plaintiffs) and show that those were false statements . . . It’s basically like a mini court case,” Ellison said.

“I’m surprised (the village) just didn’t give them the name-clearing hearing. It probably would have resolved most of this case, but they just won’t do it,” he noted.

Davis said it wasn’t a matter of “won’t.”

“To say they were denied a name-clearing hearing is not correct,” he said. “We said we will hold the hearing when you demonstrate an employment relationship.”

How did things get to this point?
Meyers, Roesner-Meyers and Calocassides claim that during the Jan. 10, 2017 village meeting, council members questioned and verbally attacked them, harming their reputations and good names. The trio claims the village failed to provide them with a name-clearing hearing, which they requested prior to filing a lawsuit.

According to Ellison, “a lot of things” were said at that council meeting, but his clients felt their reputations were damaged by village officials publicly accusing them of “not being a properly-empowered reserve officer” and “not being a properly-designated horse mounted unit.”

“The fact that (council members) accused them of impersonating police officers, which is a crime” is something the plaintiffs wish to address via a name-clearing hearing and set the record straight, he explained.

The village insists it didn’t have to provide a name-clearing hearing because based on Quinn v. Shirey – which identified five factors for a plaintiff to be entitled to a name-clearing hearing – there must have been an employment relationship and these three individuals were never employed by the municipality.

In Quinn, the court stated, “First, the stigmatizing statements must be made in conjunction with the plaintiff’s termination from employment.”

The village claims it has absolutely no record whatsoever of these three individuals having ever worked as municipal employees or served as volunteer reserve officers.

“To give them a name-clearing hearing under Quinn when Quinn was the law, we would have had to accept the fact they were employees and that would have opened up a huge can of worms,” Davis said.

Davis also didn’t see the need for a hearing based on what was said at the council meeting.

“What needs to be cleared up? That’s just a practical question,” he said. “I don’t recall anything that was said that requires clearing. That was the second line of reasoning.”

“The things that were said at that hearing all panned out to be true,” Davis noted. “Why do we have to clear up something that’s true?”

In her August 2017 ruling, Chief Judge Denise Page Hood, of the U.S. District Court, agreed with the village on the employment issue.

Hood cited Black’s Law Dictionary, which defines “employment” as “work for which one has been hired and is being paid by an employer” and “volunteer” as “someone who gratuitously and freely confers a benefit on another.”

“Since plaintiffs were not paid for their service (as reserve officers), but freely and willing(ly) gave their service, they are volunteers,” Hood wrote. “Based on (case law), plaintiffs are not entitled to a name-clearing (hearing) because they are not employees.”

However, Hood did find that three of the five factors in Quinn that do not require an employment relationship were present in the suit.

Beyond an employment relationship
In the appeals court’s June 27 ruling, it acknowledged that “the issue of entitlement to a name-clearing hearing frequently arises in the employment context.”

It, however, went on to state that “both the Supreme Court and this court have found protected liberty interests in reputation outside that context.”

The June 27 opinion cited two Supreme Court cases, one that dealt with the posting of signs forbidding the sale or gift of alcohol to certain individuals in Wisconsin and another involving a student who had been suspended from school without a hearing.

The appeals court also cited a 1993 decision it made regarding an independent contractor who held “staff privileges” at a city-owned ice rink and “gave skating lessons (there), contracting directly with her students,” until “city employees forced her off the ice and publicized false accusations of child sexual abuse against her.”

In addition to those precedents, the appeals court noted, “We have considered a number of non-employment cases . . . without declaring that only terminated employees have a right to a name-clearing hearing.”

One month after making the Quinn ruling, the court decided a case involving an ambulance company that asserted a due-process violation on the grounds that a city’s proposed suspension of its license “would damage its business reputation and impair its ability to obtain business in the future.”

“Other cases have challenged the issuance of a paper license plate following the plaintiff’s boyfriend’s drunk-driving arrest, public disclosure of a plaintiff’s sex-offender status, statutory labeling of sex offenders as mentally ill, and release of a police incident report accusing the plaintiff of rape,” stated the appeals court’s June 27 opinion.

“In light of this precedent, as well as the Supreme Court cases discussed above, we clarify that a plaintiff need not allege an employment relationship ‘to establish that he was deprived of a liberty interest (in his reputation, good name, honor and integrity) and entitled to a name-clearing hearing,” the opinion stated.

Davis called last week’s ruling “a very odd decision” considering this same court issued Quinn. “The law was crystal clear in Quinn when we made a decision to require (the plaintiffs) to show employment status before there could be a name-clearing hearing,” he said. “I don’t know how else you read Quinn element number one.”

Davis pointed out that many others, not just the village, have looked to Quinn as “the law of the land” for years.

“Fifty-five cases since Quinn was decided have relied on (it) . . . Fifty-five cases have cited to or relied on Quinn,” he said. “To now (have the court that decided it) say, ‘when we said you must be employed and (the stigmatizing statements) must happen in the process of your termination, we didn’t really mean that’ – that doesn’t even make sense to me.”

To Davis, this new ruling begs the question “what kind of relationship” does entitle a person to a name-clearing hearing?

“Does it apply to volunteers? Does it apply to independent contractors? Does it apply to people who are in a third-party contract with the village to perform a service? For example, could it apply to our waste collection company? Or could it just apply to anybody who appears before the board?” he said.

Davis is concerned about the impact this decision could have on the “openness and frankness of discussions” had by government boards. If an official “inadvertently says something that’s not true” about someone, or anyone, appearing before a board and they claim it hurt their reputation, he fears “we’re now exposed to lawsuits because we didn’t clear their name.”

“It’s crazy,” Davis said.

Davis also doesn’t believe the precedents cited by the appeals court apply to this case.

“They all deal with other things,” he said. “They don’t deal with this specific issue.”

Was or wasn’t a mounted unit authorized?
Ellison believes the village made “a colossal error” by not giving his clients a name-clearing hearing because it “assumed” that “volunteers don’t have name-clearing rights.”

To him, “that’s a ludicrous position” and “it doesn’t make any sense.”
“The only thing I can conclude is they just don’t want certain facts to come out,” he said.

One of those facts, according to Ellison, is the village’s statement that it “never authorized a horse mounted unit” is “flatly untrue”

“I don’t know if they’re just embarrassed by being caught in a lie or what, but let’s have that name-clearing hearing.

Let’s clear the air (and) get this done,” he said. “We’re not even asking for (their) positions back – just the opportunity to clear the reputations of those that the village council, at that meeting, besmirched.”

According to a Feb. 20, 2017 memo from Police Chief Mike Solwold, there was a request by the plaintiffs to become reserve officers, but it was denied by the department’s three-member reserve officer board in July 2016 “because the group was not willing to comply with the police department rules for the reserve program” and “they wanted to become a mounted division all on their own.”

Solwold, who was a sergeant at the time they applied, served on that three-member board that rejected them.
Despite this denial, the three were allegedly issued “mounted reserve badges.” An Oct. 12, 2016 invoice from the Waterford-based Harwood Tuxedos & Uniforms showed they were ordered by former Police Chief Mike Neymanowski, who resigned in February 2017.

Prior to that, Neymanowski gave written authorization for the trio to represent the Oxford department at the 32nd Annual National Mounted Police Colloquium held in September 2016 in Lexington, KY. They were given uniforms and patches to wear while there.

The trio also participated in the October 2016 Scarecrow Festival in downtown Oxford with two of them wearing village police uniforms and patches.

Neymanowski introduced Meyers and Roesner-Meyers to council during the public comment portion of the Oct. 11, 2016 village meeting and informed council he was “in the process of” forming a mounted unit that would be an “extension of our reserves.”

No council action was taken at that meeting and no formal proposal regarding the formation of a mounted unit was ever presented as agenda item or voted on by council following that.

Upon learning that Oxford’s mounted unit had been invited to participate in the inaugural parade for President Donald Trump, council, at its Jan. 10, 2017 meeting, voted 4-1 to approve a motion making it clear that no mounted police division had ever been “reviewed, approved, authorized, sanctioned or otherwise allowed” and that these three individuals “be notified to cease any and all activities wherein there is a representation of any kind that they are part of the Village of Oxford Police Department in any way.”

Ellison believes “something changed” between October and January that caused a shift in the village’s attitude towards his clients and he wonders if it was “because they were going to the inauguration of Donald Trump.”

“If (the village) retaliated on the basis . . . of who the president-elect was, that’s got further legal implications to it than just the issue of a name-clearing hearing,” he said.

In response to that, Davis said, “Those assertions (are) ridiculous.”

“Nothing happened – and that’s the whole point,” he continued. “They were never brought on as reserves, they were never sworn-in as reserves, they never agreed to the conditions of being reserves. The reason they were denied by the reserve board is they didn’t want to have to fulfill the steps and the requirements that all the other reserve officers had to adhere to.

“So what happened (during) that time period is in fact nothing. That’s the point – nothing happened. Their status never changed . . . How can (the village) be accused of taking away a status that never existed?”

CJ Carnacchio is editor for The Oxford Leader. He lives in the Village of Oxford with his wife Connie and daughter Larissa. When he's not busy working on the newspaper, he enjoys cigars/pipes, Martinis/Scotch, hunting and fishing.